Tuesday, December 11, 2012

PF Jan 2013 Citizens United - Pro Position

For part one of this analysis, click here.

The PRO Position

PRO will be advocating as a result of the Citizens United decision, the unlimited spending of super PACs harms the political process.  The difficulty of this position is PRO will be essentially advocating that unlimited free-speech can be harmful.  Taking such a stand, while perhaps intuitive is not easy because the court has a long history of protecting free speech rights.  It is one of the core values of America.  Nevertheless, students of first amendment rights, which you all should be since you freely exercise that right each tournament, know that despite very strong protections, certain kinds of speech are limited.  The most famous example arises from Schenck v United States in which decision,  Justice Holmes elucidated the "clear and present danger" test:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent"

This is where the idea came about it is illegal to shout fire in a crowded theater, though the Justice stated, "falsely" shouting fire which is not quite the same.  It may be remotely possible for PRO to make the case that super PAC speech creates a clear and present danger but I doubt any reasonable judge will buy it.  Some types of political communications are limited to a point.

Cohen 2009:
In its current formulation of this principle, the Supreme Court held that “advocacy of the use of force or of law violation” is protected unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Similarly, the Court held that a statute prohibiting threats against the life of the President could be applied only against speech that constitutes a “true threat,” and not against mere “political hyperbole.”  In cases of content-based restrictions of speech other than advocacy or threats, the Supreme Court generally applies “strict scrutiny,” which means that it will uphold a content-based restriction only if it is necessary “to promote a compelling interest,” and is “the least restrictive means to further the articulated interest.

For more on various kinds of free speech limitations, refer to the Cohen 2009 paper listed below.

A Drop In The Ocean

The Citizens United decision was not unanimous and fortunately for debate it is so.  This means, not all of the justices agreed the decision was a good thing so there is leverage to be found by PRO in the dissenting opinions of the court.  In my opinion, one of the key factors in favor of PRO will center on the question of equality more so than freedom of speech.  In most political discourse the principle of "equal time" is well known.  For example, when the President gives the State of the Union Speech, the opposing party is granted "equal time" to express their point of view.  In the case of super PACs, the financial resources of the PAC can literally swamp opposing points of view and create a disparity in the concept of "equal time" such that individual points of view are a "drop in the ocean" of expressed opinion.  So it becomes not a fight about speech content or even the right to speak.  If for example, a super PAC purchased 100% of television ad space to advocate their point of view, it does not necessarily suppress individuals from speaking out, but it does limit their opportunities to speak.  This was exactly the idea put forth in Justice Steven's dissent:

Sullivan 2012:
"While Justice Stevens disputes the majority’s characterization of this interest as impermissibly advancing the “equalization” of speaking power, his own description suggests that it is necessarily redistributive: he argues that source limitations on corporate political expenditures will limit the deployment of resources “on a scale few natural persons can match,” and avert the “drowning out of noncorporate voices” through “corporate domination of the airwaves prior to an election.
Justice Stevens’s dissent thus embodies one deep strand of free speech jurisprudence that might be called free speech as equality. This vision of free speech has both an antidiscrimination component and an affirmative action component. The former bars government from discriminating against marginal, dissident, or unpopular viewpoints that are likely to suffer political subordination or hostility. The latter enforces a kind of preference or forced subsidy for marginal, dissident, or unpopular viewpoints by barring the attachment of speech-restrictive conditions to the receipt of public benefits. On this view, political equality is prior to speech: when freedom of speech enhances political equality, speech prevails; when speech is regulated to enhance political equality, however, regulation prevails. Government may redistribute speaking power so long as it does so along viewpoint-neutral dimensions such as speakers’ structural or institutional features.  Such concerns about the disproportionate influence of corporate speech can be addressed only by reducing the influence that corporate speakers would have if speech were left to private ordering."

A very powerful argument, in my opinion is found in the contention that because of the enormous spending power of corporations, free speech is not increased, it is actually decreased as dissenting voices become overwhelmed in the noise of corporate opinions.

The Corporate Non-Person

Another significant PRO argument can be found in the argument that corporations are not individuals so should not be granted rights as individuals.

McGovern 2012:
We are already witnessing the corrosive effects of Citizens United: an election system awash in a sea of millions of dollars in unregulated money, drowning out the voices of individual citizens.
Politicians are increasingly beholden to wealthy special interests.
A multinational oil company that doesn’t like a politician — of either party — can now simply write a big, undisclosed check to “Americans for Apple Pie and Puppies” and watch the negative advertisements work their magic.

But the effects of the corporate rights doctrine go far beyond campaign finance. A Vermont law to require that milk products derived from cows treated with bovine growth hormone be labeled to disclose that information was struck down as a violation of the First Amendment.
A federal judge has found that tobacco companies have a free-speech right that prevents the government from requiring graphic warning labels on cigarettes. A pharmaceutical corporation has claimed that their corporate speech rights protect them from FDA rules prohibiting the marketing of a drug for “off-label” uses.

As Justice John Paul Stevens rightly noted in his dissent in Citizens United, the majority ruling was “a radical departure from what has been settled First Amendment Law.”
These corporate “rights” are relatively new, appearing in the last few decades. They overturn centuries of established jurisprudence and national consensus. The Supreme Court used to repeatedly affirm that the elected governments of the states and the nation could regulate corporations.
Chief Justice John Marshall described the corporate entity as “an artificial being … existing only in contemplation of law.” No less an authority than James Madison viewed corporations as “a necessary evil” subject to “proper limitations and guards.” Thomas Jefferson wished to “crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”
There is nothing “originalist” about the corporate rights doctrine, and it is no mere accident that the first three words of the preamble to our Constitution are “We the People.”
The framers, as Justice Anthony Kennedy said, “had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.”

SOTOMAYOR join, concurring in part and dissenting in part.
Citizens United v Federal Election Commission
Neither Citizens United’s nor any other corporation’s speech has been “banned.” All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. . . .
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

Compulsory Speech

Corporations are public entities and are beholden to shareholders.  Shareholders may be a closed group of closely-knit individuals such as a few members of a family or they may be public stockholders comprised of ordinary citizens.  Under US corporate law shareholders are granted certain voting privileges, such as the election of the board of directors.  Shareholders have a financial stake in the corporation.  They have put up money usually in the form of common stocks.  However, what if you invested in a company that has sponsored a super PAC advocating the cancelling of school debate programs.  You might want to know that so you could decide whether you want to withdraw your financial support of the corporation.  If the corporation decides without a vote of the shareholders to engage in political speech you do not agree with what protection is there for your investment?

Thaler 2011:
When corporations use general treasury money to finance electioneering communications, they use their shareholders’ money to fund their corporate speech. Corporate laws such as the business judgment rule allow corporations to make these business decisions without shareholder consent. Yet, political expenditures are fundamentally different from general business decisions because political expenditures support causes intrinsic to self-expression. An interesting body of law, termed the "Forced Speech Doctrine," holds that freedom of speech under the First Amendment to the U.S. Constitution includes freedom from compulsory speech. The two major Supreme Court cases in this boutique category of First Amendment jurisprudence are Keller v. State Bar of California, and Abood v. Detroit Board of Education. These cases held that dissenting attorneys and nonunion public school teachers, respectively, could not be required by law to contribute money to an organization that uses compulsory dues to make political expenditures that are unrelated to the organization’s mission. Such compulsory dues constitute a violation of the individuals’ freedom of speech under the First Amendment to the U.S. Constitution. As this Note will discuss, after Citizens United,...Safeguarding freedom of expression requires protecting dissenting shareholders from being forced to support disagreeable causes. To provide such protection, it is paramount that corporations disclose how they are spending their shareholders’ money.

The Corporate Superior

To stimulate even more thinking about possible PRO contentions, recall earlier in this analysis when I explained campaign financing, it was noted that individuals are subject to strictly regulated limits on how much they may donate toward an election campaign.  This limit was designed to prevent the possibility of political corruption and influence peddling.  Since the Supreme Court has found in favor of Citizens United, unlimited corporate "donations" to campaigns in the form of independent expeditures establish corporate enties as outside of regulatory limitation.  This would suggest the Court actually supports the possibility that corporate influence is superior to that of individuals.  I think I will reserve this particular topic for possible future expansion.

Over-ruling Corporate Regulation

What safe-guards are in place to ensure the message of corporations are within the best interests of the American citizens?  History is full of examples of corporate speech which was misleading, destructive, and dangerous and regulations have been put in place to prevent abuses in some of the more egregious cases.  But, the Citizens United case, with its unrestricted stance complicates the efforts of regulators to protect individuals.

Piety 2010:
Although Citizens United has been roundly criticized for its potential effect on elections and its display of judicial immodesty (or "activism"), the effect of the case which may be both most profound and perhaps most pernicious is its effect on the commercial speech doctrine. This is an aspect of the case which has been largely overlooked. Most people seem to be unaware of any connection between election law and the commercial speech doctrine-except, that is, those who have been working long and hard to accomplish the change it foreshadows. They are keenly aware of its implications....

The Citizens United opinion, with its rhetorical framing of corporations as "citizens," provides ammunition for those arguing that commercial speech ought to receive full First Amendment protection. The antidiscrimination rhetoric is troubling because it provides cover for the Court's use of its countermajoritarian power on behalf of the powerful rather than against them. Full protection for commercial speech would threaten many of the regulatory initiatives of the last couple of years.

Given the disastrous corporate collapses of the last few years, it is evident the market cannot always be relied upon to protect the public. False and misleading commercial speech poisons the informational environment. Like an out-of-control oil well, large corporate interests inject vast amounts of "noise" (false and misleading speech) into the public sphere, every day, virtually unchecked. As we have seen with tobacco, this informational pollution can have significant negative consequences for public health, safety, and economic stability. Full First Amendment protection of this speech seems likely to make things worse. Can it really be the case that respect for freedom of expression makes the government powerless to combat informational pollution? In another First Amendment case, Justice Jackson famously warned the Court not to turn the Bill of Rights into "a suicide pact." But constitutional protection for commercial speech might do just that.

For the Con position, click here.

For links to other Public Forum debate topics, click here.


Freedom of Speech and Press: Exceptions to the First Amendment, Congressional Research Service
Henry Cohen, Legislative Attorney, October 16, 2009

Kathleen M. Sullivan, 2012

Rescuing "We the People"
Congressman Jim McGovern, 2012

Citizens United and Forced Speech: Why Protecting the Dissenting Shareholder Necessitates Disclosure of Corporate Political Expenditures After Citizens United v. FEC, Washington and Lee Journal of Civil Rights and Social Justice
Sabina Bunt Thaler 2011

Experts assess impact of Citizens United
HLS professor suggests constitutional amendment stating corporations are not people
Jill Greenfield, Harvad Law School Communications, 2012

Tamara R. Piety, Commentary, Citizens United and the Threat to the Regulatory State, 109 Mich. L. Rev. First Impressions 16 (2010),


  1. You basically just wrote my pro case. Thank you so much.

  2. How ghetto is that :(


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